Archive for October, 2009

Under prompt appeal is this automatic decision by the lower court in New York, which takes deference to ” rational basis” analysis to another level. AAPS argued that New York State cannot have a website that lists physicians as board certified in Emergency Medicine and explains that that means they were residency trained in Emergency Medicine, when in fact some of those physicians were grandfathered into Emergency Medicine and did not do a residency in Emergency Medicine.

New York State maintained that the reason for having the site is so that consumers can be informed about who is in fact treating them in Emergency Rooms. While most non lawyers might not understand how the court arrived at their superficial conclusion, an explanation is in order.

New York’s actions discriminate against equally situated physicians, namely (1) ER physicians who belong to AAPS who did not do a residency in Emergency Medicine and (2) ABEM certified physicians who grandfathered in to Emergency Medicine who also did not do a residency in Emergency Medicine. AAPS argued the obvious. Since there is no difference essentially between the two groups of physicians, why are the ABEM physicians listed on the website and the AAPS physicians, not listed?

This is logic so simple a caveman could get it. However, enter rational basis analysis. Challenges to New York’s action is analysed by the court under a rational basis theory. Under “rational basis”, New York need only have a rational basis, meaning any basis you can think of, even a not so rational, rational basis. The lower court held that New York was rational in listing physicians as they did because the ABEM grandfathered physicians were granddfathered in and basically New York could choose to ignore the obvious deficiency in residency training and that illogic was ok under rational basis legal analysis. Huh! come again.

AAPS pointed out the irrationality and of course the obvious fact that by finding for New York, the lower court perpetuating a fraud on the people of New York. So AAPS has appealed. It will be interesting to see what happens.